United States v. Herrera

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 17, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-10665
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTURO HERRERA,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-2578-P
_________________________________________________________________
Before JOLLY, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
This appeal arises from the denial of Arturo Herrera’s
(“Herrera”) motion for post-conviction relief under 28 U.S.C. §
2255. Herrera was convicted for his involvement in a large-scale
drug-trafficking conspiracy run by the de la Torre family. We
affirmed his conviction. United States v. Robles, No. 98-10110
(5th Cir. Aug. 26, 1999) (unpublished table decision). In this
habeas appeal he seeks to set aside his convictions. He contends
first that his counsel was ineffective for failing to move for a
judgment of acquittal at the close of evidence because the evidence
was insufficient to support his convictions. Second, he contends
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
that had trial counsel not interfered with his right to testify, he
would have been able to give testimony tending to show reasonable
doubt as to his guilt.
We turn to briefly discuss the facts underlying the
convictions that he seeks to set aside. Miguel de la Torre
(“Miguel”) headed a marijuana trafficking organization based in
Dallas. The organization obtained marijuana imported from Mexico
and distributed it. In March 1997, Miguel became concerned that he
was under police surveillance, and he contacted Herrera. According
to the evidence, Miguel told Herrera that he was dealing in
marijuana and that he thought the police were investigating him, a
fear that he asked Herrera to confirm. Herrera agreed to perform
a record search to determine whether the police were following
Miguel. To facilitate his request, Miguel gave Herrera some
relevant personal information needed to perform such a search.
Herrera reported back to both Miguel and Miguel’s sister that
the police were investigating Miguel’s neighborhood and people with
whom he did business, and that one of those people was “snitching.”
Herrera also told Miguel that he knew four narcotics officers to
whom he could pay $3000 a month to protect Miguel. Miguel gave
Herrera $3000 to pay off the officers for protection for the first
month. There was no evidence to show that Herrera actually paid or
attempted to pay any officers.
Furthermore, Officer Joseph Emmett testified that a couple of
times a week, Herrera would call him, give him names and birthdays,
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and ask him to check his police computer for outstanding warrants.
Officer Emmett refused to perform any searches, but he said that
Herrera continued asking him to perform searches through the spring
of 1997.
On August 28, 1997, Herrera was indicted on one count of
conspiring to import, distribute, and possess with intent to
distribute marijuana, in violation of 21 U.S.C. § 846; three counts
of use of a communication device to facilitate a drug-trafficking
crime, in violation of 21 U.S.C. § 843(b); one count of money
laundering, in violation of 18 U.S.C. § 1956; and one count of
accessory after the fact to possession with the intent to
distribute marijuana, in violation of 18 U.S.C. § 3.
In October 1997, Herrera and four co-defendants were tried to
a jury, with Domingo Garcia representing Herrera as trial counsel.
At the close of the prosecution’s case-in-chief, Garcia moved for
a judgment of acquittal. Herrera did not testify during the
defense’s case-in-chief. In this respect, the following exchange
occurred:
MR. GARCIA: .... I have gone at great length
discussing with Mr. Herrera his right to
testify and to be cross-examined if he chose
to testify as well as his right to invoke his
Fifth Amendment rights to not testify. And he
understands that that can’t be held against
him.
After discussion, Mr. Herrera has decided
not to testify today, and that is his
indication. That’s why he did not testify.
THE COURT: And Mr. Herrera, I’ll ask you,
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sir, do you agree with what your attorney just
stated?
DEFENDANT HERRERA: Yes, sir, I just stated.
At the close of the evidence, Garcia failed to renew the motion for
a judgment of acquittal. The jury convicted Herrera on the
conspiracy, communication facility, and money laundering counts,
and acquitted him on the accessory after the fact charge. On
January 21, 1998, the district court sentenced Herrera to 120
months of imprisonment on the conspiracy count, 48 months on the
communication facility counts, and 120 months on the money
laundering count, to be served concurrently, for a total
incarceration term of 120 months.
Herrera appealed his conviction to this Court. Herrera raised
several issues as bases for reversal, including that the evidence
was insufficient to support his conviction. On August 26, 1999,
this Court affirmed Herrera’s conviction. In its review of the
sufficiency of the evidence, the Court undertook review only for
plain error, due to Garcia’s failure to renew the motion for a
judgment of acquittal at the close of evidence.
Herrera filed this Motion to Vacate pursuant to 28 U.S.C. §
2255 on November 11, 2000. On May 25, 2004, the district court
denied the motion without holding an evidentiary hearing. Herrera
filed a timely notice of appeal, and the district court granted a
Certificate of Appealability (“COA”) on the issue of whether trial
counsel was ineffective in failing to move for a judgment of
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acquittal at the close of the evidence. This Court further granted
a COA on the issues of whether trial counsel was ineffective for
interfering with Herrera’s right to testify and whether the
district court erred when it denied Herrera’s § 2255 motion without
holding an evidentiary hearing.
“Ineffective assistance of counsel is a mixed question of law
and fact, and [this Court] review[s] the district court’s grant [or
denial] of habeas relief de novo, while crediting the district
court’s express or implied findings of discrete historic fact that
are not clearly erroneous.” United States v. Mullins, 315 F.3d
449, 453 (5th Cir. 2002); see also Sayre v. Anderson, 238 F.3d 631,
634-35 (5th Cir. 2001). To prove an ineffective assistance of
counsel claim, a defendant must show (1) “that counsel’s
performance was deficient[,]” and (2) “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). The second prong requires that the defendant
prove that a reasonable probability exists that, but for counsel’s
errors, the factfinder would have had a reasonable doubt regarding
guilt and that the errors were “‘so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’”
Mullins, 315 F.3d at 456 (5th Cir. 2002) (quoting Strickland, 466
U.S. at 687).
We find that Herrera has not shown that he was prejudiced by
trial counsel’s failure to move for a judgment of acquittal at the
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close of the evidence.
Examining the conspiracy charge, the communication facility
charges, and the aiding and abetting charges under a sufficiency of
the evidence standard, sufficient evidence was presented to show
that Herrera knowingly and voluntarily participated in the
conspiracy. Herrera knew that Miguel was a drug dealer, offered
police protection to Miguel, offered to provide Miguel with
information, counseled Miguel on how to bring a co-conspirator back
into the country, questioned Officer Emmett, and clearly benefitted
from the continuance of the conspiracy, as he could continue to
receive money from Miguel only if the conspiracy continued. This
evidence is sufficient to allow the jury to infer Herrera’s
participation in the conspiracy. See, e.g., United States v.
Tenorio, 360 F.3d 491 (5th Cir. 2004); United States v. Booker, 334
F.3d 406 (5th Cir. 2003).
We likewise find the evidence supporting Herrera’s money
laundering conviction sufficient to support the jury verdict. The
record reflects testimony that Miguel had no means of generating
any significant income from anything other than his drug
organization and the jury could reasonably conclude that Herrera
did not know of any other means for Miguel to generate real income.
Thus the jury could reasonably infer that the $3000 consisted of
illegal proceeds, and that this fact was evident to Herrera.
Furthermore, it was reasonable for the jury to infer that the drug
proceeds affected interstate commerce. See United States v. Gallo,
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927 F.2d 815, 822-23 (5th Cir. 1991). For the same reasons cited
in finding that the jury could have made a reasonable inference
regarding participation in the drug conspiracy on Herrera’s part,
the jury could have made a reasonable inference that Herrera
participated in the financial transaction with the intent to
promote the drug organization.
We are unpersuaded that Herrera’s counsel rendered ineffective
assistance of counsel by impermissibly interfering with Herrera’s
right to testify. Given the circumstances and Herrera’s
background, Herrera gave a knowing and voluntary waiver of such
right. Herrera is educated, fluent in English, and a former legal
assistant. His answer to the court’s colloquy asking whether he
understood and waived that right was clear enough to demonstrate a
knowing and voluntary waiver. In sum, the record reflects that
Herrera knew what he was doing when he involved himself in the drug
conspiracy and when he waived the right to testify.
In making the determinations stated above, we hold that the
district court did not abuse its discretion in failing to hold an
evidentiary hearing. The decision to deny a request for an
evidentiary hearing on a § 2255 motion is reviewed for abuse of
discretion. United States v. Bartholomew, 974 F.2d 39, 41 (5th
Cir. 1992). “A motion brought under [] § 2255 can be denied
without a hearing only if the motion, files, and records of the
case conclusively show that the prisoner is entitled to no relief.”
Id. Here, we see no issue that a hearing would elucidate. The
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sufficiency of the evidence is clear and we are fully satisfied
that Herrera was well aware of his right to testify and that he
knowingly waived that right.
For the foregoing reasons, the district court’s denial of §
2255 relief is
AFFIRMED.
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